Twenty five years ago, North Carolina adopted graduated licensing for young drivers, a system founded on the principle that “[s]afe driving requires instruction in driving and experience.” G.S. 20-11(a). The statutory scheme implementing this program grants driving privileges on a limited basis and expands those privileges over time and upon the satisfaction of additional requirements. Id. Accordingly, to receive the first level of a driver’s license – termed a limited provisional license – a driver must have held a limited learner’s permit for at least 12 months. The holder of a limited provisional license generally may not drive unsupervised after 9 p.m. and may not have more than one passenger under the age of 21 in the vehicle. Last month, the General Assembly ratified legislation that loosens these requirements.
Motor Vehicles
The Effect of Legal Hemp on Drug Dog Sniffs (Part II)
Last week, in Part I of this series, I discussed whether having a drug dog sniff a vehicle is a search if the drug dog might alert upon smelling hemp, a substance that is legal to possess. Today’s post focuses on what may be an even more significant question: if a dog alerts, does the alert provide probable cause to search?
Circuit Split! New Opinion Upholds Warrantless Tire Chalking
Shea posted here about a 2019 opinion from the Sixth Circuit holding that chalking tires for purposes of parking enforcement was a Fourth Amendment search and rejecting at least some of the proposed legal justifications for the practice. That case led to some further proceedings and eventually to a new opinion, Taylor v. City of Saginaw, Michigan, 11 F.4th 483 (6th Cir. 2021), holding that the suspicionless chalking of tires (1) is a search, (2) is not justified as a community caretaking function, and (3) is not justified as an administrative search. The Taylor court ruled that the law was not previously clearly established, so the parking officer whose conduct was at issue was entitled to qualified immunity. But going forward, warrantless tire chalking is a no-no in the Sixth Circuit. Now another circuit has weighed in with a different perspective.
State v. Diaz-Tomas Recognizes Broad Prosecutorial Discretion Following Dismissals With Leave
The North Carolina Supreme Court held last week in State v. Diaz-Tomas, ___ N.C. ___, 2022-NCSC-115 (November 4, 2022), that neither a criminal defendant nor the court has the right to compel a district attorney to reinstate criminal charges that were dismissed with leave pursuant to G.S. 15A-932 due to the defendant’s failure to appear. The case arose in Wake County, where the district attorney’s office reportedly would reinstate misdemeanor charges dismissed with leave under G.S. 15A-932 only if the defendant agreed to plead guilty and to waive his or her right to appeal to superior court for trial de novo. As a result, Diaz-Tomas’s only option for ending the indefinite license revocation that was imposed for his failure to appear is to plead guilty to the driving while impaired charges that were dismissed with leave. This post discusses the state supreme court’s analysis and considers how it might apply in other circumstances.
Must a Vehicle Be Located in a PVA to Be Searched Without a Warrant?
In State v. Parker, __ N.C. App. __, __ S.E.2d __, 2022 WL 4850255 (Oct. 4, 2022), the Court of Appeals considered the warrantless search of a vehicle that took place at a gas station. The court upheld the legality of the search based on probable cause that the vehicle contained evidence of drug activity. In the course of its opinion, the court stated that “the automobile exception [to the warrant requirement] . . . requires that the vehicle be in a public vehicular area.” Is that right?
Alcohol Concentration Restrictions on Restored Licenses and the Enforcement of Violations
When a person is convicted of driving while impaired under G.S. 20-138.1, the person’s license is revoked for one year. G.S. 20-17(a)(2); G.S. 20-19(c1). (A person who has one or more prior convictions for an offense involving impaired driving may be subject to a longer period of revocation, depending on when those offenses occurred.) At the conclusion of that one-year revocation period, the person may seek to have his or her license restored by furnishing proof of financial responsibility and by paying a restoration fee of $140.25. G.S. 20-7(c1), (i1). The license then may be restored with a restriction prohibiting the person from operating a vehicle with an alcohol concentration of 0.04 or more at any relevant time after the driving. G.S. 20-19(c3). That restriction, listed on the driver’s license as Restriction 19, remains in effect for three years. This post addresses how such a restriction is enforced and the consequences for a substantiated violation.
Asking for Consent to Search During a Traffic Stop
Suppose an officer conducts a traffic stop. During the stop, the officer gets a hunch that the driver may have drugs in the car. Can the officer ask the driver for consent to search the car? Even without reasonable suspicion? Does the time it takes to ask for consent, or the time it takes to conduct the search, unlawfully extend the stop? I’ll try to answer these important questions in this post.
DMV Hearings and Procedural Due Process
Earlier this year, the North Carolina Court of Appeals in Edwards v. Jessup, 282 N.C. App. 213 (2022), considered whether a license revocation hearing in which a hearing officer employed by the Division of Motor Vehicles (DMV) both elicited and evaluated evidence, ultimately ordering revocation, violated the petitioning driver’s right to due process. Spoiler alert: The Court held that the DMV hearing process did not violate the driver’s constitutional rights. Continue reading to learn why.
State v. Rouse and Circumstantial Evidence of Driving
To prove impaired driving, the State must establish that the defendant drove a vehicle while impaired. A person drives when he or she is “actual physical control of a vehicle which is in motion or which has the engine running.” G.S. 20-4.01(25). Sometimes the State may establish driving through direct evidence. For example, a law enforcement officer or another witness may observe the defendant driving and may testify to that fact. In other cases, a law enforcement officer may encounter the person the officer believes was driving after the driving has concluded, perhaps in or near the car or at some other location. In those cases, the State may seek to establish driving based on circumstantial evidence. The Court of Appeals’ recent opinion in State v. Rouse, 2022-NCCOA-496, __ N.C. App. ___ (July 19, 2022), considers when such circumstantial evidence is sufficient to survive a motion to dismiss.
2021 Statistical Report for Driving While Impaired Convictions Now Available
Last week, Jamie blogged about the 2021 Structured Sentencing Statistical Report from the North Carolina Sentencing and Policy Advisory Commission. As Jamie noted, that report contains detailed information related to felony and misdemeanor sentences imposed in Fiscal Year 2021, including the most commonly used felony grid cell, the number of convictions by district, average probation length, and typical sentencing outcomes for the most charged offenses. Because that report analyzes felony and misdemeanor convictions and sentences imposed under the Structured Sentencing Act, it does not include information about one of the most commonly charged misdemeanors in North Carolina: driving while impaired, which is sentenced under the sentencing scheme set out in G.S. 20-179. The Sentencing and Policy Advisory Commission prepares a separate report each year analyzing those convictions, and the Driving While Impaired Convictions Statistical Report for Fiscal Year 2021 is available here. Read on for highlights from the report, which contains data about convictions under G.S. 20-179 from July 1, 2020 through June 30, 2021.